We frequently get contacted by injured persons wanting to know if they can fire their personal injury lawyer.
The short answer is “yes, you can fire your personal injury lawyer even if you’re paying a contingent fee”, but you still may end up paying the first lawyer. Let me explain.
Texas contingent fees are governed by a 1969 Supreme Court case of Mandell & Wright v. Thomas. In that case, the Court stated that when a client fires a lawyer who is working on a contingent fee without having good cause, then the lawyer can still recover the full contractual fee.
This means that if you have hired a lawyer and agreed to pay him 40% contingent fee, decide to fire the first lawyer and hire a second lawyer on an identical 40% contingent fee, then you could be paying 80% of your claim for attorneys’ fees. So yes, you can fire your lawyer, but if you’re not careful, you could end up paying for that decision.
Having said that, these issues can usually be worked out. When you call us and ask us about firing your current personal injury lawyers, the first advice is almost always to schedule an appointment with the prior lawyer, sit down face to face, and see if you can’t work through your differences. In many cases, disputes are often just a misunderstanding, and communication between you and the lawyer can help both of you move forward.
I realize that can’t work in all cases. For a variety of reasons, you might not be able to work with your current lawyer.
In most cases, if you simply can’t work with your prior lawyer, then we can try to work something out with the prior lawyer so that you’re not being charged two fees. Sometimes, the prior lawyer may agree to give up his rights to the fee and expenses. Sometimes, the prior lawyer may agree that he won’t collect a fee, but he would like to be reimbursed for his out-of-pocket expenses incurred in your case. And in other cases, we will work something out with the prior lawyer to share the fee so that you are only charged one fee. The particular circumstances in your case will dictate what agreement can likely be reached.
However, there are times when we’ll talk to your prior lawyer, and we can’t work out any agreement. Those instances are difficult. Depending on the circumstances, we may advise you take various steps, including investigating whether you might want to file a fee dispute with the Austin Bar Association Fee Dispute Committee. Regardless, if we can’t work something out with your prior attorney, we will typically not take your case until that issue is resolved because we don’t want to be part of a matter where you might be paying two fees.
So long and short, yes you can fire your personal injury lawyer, but the best way to do it is to do it as amicably as possible to minimize the risk that you might have to pay extra attorneys’ fees.